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Westlaw Journal Government Contract - December 19, 2016
By: Ed DeLisle & Carl Vernetti
In a recent decision, the Government Accountability Office (“GAO”) disappointingly, if unsurprisingly, confirmed that it no longer has jurisdiction to hear protests against a task order issued by a civilian agency.
First, a bit of history on the GAO’s jurisdiction to hear protests against task orders. As government contract aficionados likely already know, the Competition in Contracting Act (“CICA”) of 1984 established GAO’s jurisdiction to hear protests against contract solicitations and awards. Because the trend towards massive, multiple-award contract vehicles was not yet in full swing in 1984, CICA did not distinguish between protests against individual contracts and task orders awarded off of IDIQ contracts.
A legal distinction between resolution on protests of standalone contracts and task order awards was not made until ten years later, when Congress passed the Federal Acquisition Streamlining Act1 (“FASA”). Confronting the issue of task order protests for the first time, FASA barred all GAO protests regarding procurements of task orders, except for where a protestor alleged that the task order increases the scope, period, or maximum value of the underlying IDIQ contract.
In 2008, following a period that saw an accelerated shift in contracting practices away from standalone awards and towards strategic sourcing vehicles and other large IDIQs, Congress reconsidered the issue of task order protest jurisdiction. Consequently, Section 843 of the National Defense Authorization Act for Fiscal Year 20082 (“the NDAA”) expanded GAO’s ability to hear protests against task order to include protests of any task order over $10 million.
Subsequent NDAAs made GAO’s $10 million task order protest threshold permanent for orders placed by Department of Defense agencies, but established that the GAO’s jurisdiction over task orders of civilian agencies would cease on Sept. 30, 2016, without a further act of Congress. Compare 41 U.S.C. § 4106(f)3 (relevant provision for civilian agencies) with 10 U.S.C. § 2304c(e)4 (relevant provision for DoD). Congress, somewhat predictably, did not act before the Sept. 30th deadline.
On November 7th, 2016, the GAO issued a decision in Ryan Consulting Group, Inc.5 In Ryan, the protestor was one of many awardees of a National Institute of Health (“NIH”) IDIQ contract. The U.S. Department of Housing and Urban Development (“HUD”) issued a task order, valued over $10 million, off of the NIH IDIQ. Ryan Consulting bid, was not selected for award, and filed a bid protest with the GAO on October 14, 2016, alleging that HUD misevaluated proposals. GAO dismissed the protest, holding, in pertinent part:
[O]ur jurisdiction to resolve a protest in connection with a civilian agency task order, such as the one at issue, expired on September 30, 2016, pursuant to the express terms of 41 U.S.C. § 4106(f)(3). Moreover, the protester does not otherwise argue that the order at issue increases the scope, period, or maximum value of the underlying IDIQ contract. Accordingly, our Office does not have jurisdiction to consider the protest.
Until Congress acts, contractors looking to challenge a civilian agency’s task order award are largely out of luck. Unless the potential protestor can allege that the order has expanded the parameters of the master IDIQ in some way, the GAO is unlikely to entertain any protests.
Currently, the House of Representatives and the Senate are at odds over the path forward, with the House proposing to reinstate task order jurisdiction (See Section 1862 of the House’s proposal for the 2017 NDAA6) and the Senate seeking to eliminate it permanently, in favor of a system where task order protests are resolved by an internal agency ombudsman (See Section 819 of the Senate’s proposed 2017 NDAA7). The issue of task order jurisdiction is likely to be resolved when Congress passes a full NDAA for fiscal year 2017, which is expected to happen in the next several months.